Civil service reforms snarled by obscure section of constitution

A fight between Democrats and Governor Christie over the way New Jersey promotes its public employees has prompted a power struggle centered on a never-before-used amendment to the state constitution.

It’s a dispute with roots in a part of the constitution so obscure that even prominent New Jersey constitutional experts know little about it. But the results of the fight could be far-reaching, possibly affecting the jobs of all 80,000 state workers.

If Christie wins, his administration argues the proposal will create a more efficient and effective state government. But Democrats and public sector unions see it differently: They say the change could lead to nepotism, cronyism and corruption.

The proposal would create a system known as “job banding.” State employees could advance from one job within their band to another without taking a civil service test or competing with other prospective applicants, which they have to do now. They would still have to take a civil service exam before initially being hired, but after that, managers would have much more freedom to move workers to other jobs as long as they are not moving outside their band.

Democrats have called it “an affront to the people of New Jersey.” The head of the state’s AFL-CIO union said it “opens the door to the type of cronyism that civil service was created to eliminate in the first place.” The chairman of the Civil Service Commission, meanwhile, has called those accusations “disparaging.” A Christie spokes­man said the objections are “baseless” and said the union leaders are “embarrassingly uninformed.”

The Civil Service Commission, which is run by Christie appointees, gave final approval to the proposal on May 7.

Democrats in the Legislature said they’ve already blocked it once and, if need be, they will sue to block it again. And they plan to once again use the constitutional amendment that allowed them to upend the commission’s action earlier this year — the first time a Legislature used that power.

The Assembly and Senate each passed a resolution in January declaring that job banding violates the legislative intent of the Civil Service Act. Under a little-known constitutional amendment from 1992, the Legislature can overrule any administrative rule deemed inconsistent with the intent behind state law. To do that, lawmakers must declare a rule inconsistent with legislative intent and give the administration 30 days to respond. If the administration doesn’t make changes, lawmakers can then pass a resolution throwing out the proposal. The resolution doesn’t need approval from the governor, and it can pass each chamber by bare majorities.

And that’s what they did, the Democrats say. The Legislature passed a resolution in June 2013 stating that the job banding proposal violated the intent of state law. Committees held hearings in December. And then in January, for the first time in New Jersey history, each chamber of the Legislature approved a resolution — in votes along party lines — invalidating the civil service change.

“We are in uncharted territory,” Sen. Bob Gordon, D-Fair Lawn, one of the resolution’s sponsors, said in an interview last week.

A couple of days before Christmas — two weeks before the Legislature approved its resolution — the Civil Service Commission changed its original proposal. Under the revised proposal, job bands would apply only to state government, not county or local governments.

That revision was enough of a change, the administration argues, for the banding proposal to scurry out from under the Democrats’ resolution: By the time they voted on it in January, it was irrelevant.

Because of that timing issue, “the Legislature DID NOT FOLLOW THE procedural requirements” laid out in the state constitution, Robert Czech, the Civil Service Commission chairman, wrote in a letter to lawmakers this month.

Democrats were infuriated. Senate President Stephen Sweeney, D-Gloucester, who called the proposal “deplorable,” threatened to go to court to get an injunction, legally forcing the administration to abandon its plan. Hetty Rosenstein, director of the New Jersey chapter of Communications Workers of America, which represents many state workers, said her union is prepared to launch a lawsuit, if necessary.

What the current dispute comes down to, Democrats say, is Christie ignoring the Legislature’s constitutional powers.

“This is perhaps the most egregious example of the executive branch just disregarding legislative intent,” said Gordon, the Democratic senator from Fair Lawn.

And the disagreement seems to be heightened by the fact that the constitutional power at issue has never before been used.

Frank Askin, a Rutgers School of Law professor who has argued cases based on other parts of the state constitution, declined to discuss the amendment that gives the Legislature this veto power.

“Professor Askin isn’t familiar with those issues,” said Janet Donohue, director of communications at Rutgers Law, “and I haven’t found another faculty member who is.”

The amendment was added to the constitution by New Jersey voters in 1992. And it was supported by a lawmaker who, today, looks like an unlikely promoter: Sen. Gerald Cardinale, R-Demarest.

In a Record article from March 1992, Cardinale said the amendment could save New Jerseyans from “a bureaucratic dictatorship.”

But this year, the first time the amendment was ever used, Cardinale voted against the resolution invalidating the job banding proposal. He didn’t respond to requests for comment last week.

The Democrats are now trying again to veto the civil service changes. On May 19, a Senate committee approved a new resolution. If it passes an Assembly panel, followed by the full Assembly and Senate, it appears that job banding will, this time, be blocked.

“They’ll pass it twice. They’ll do it again,” Rosenstein, of the CWA union, said last week. “Ultimately, there will not be job banding in this state.”